Case A26040081

K.A. KENNERLY · 2026 · Case ID: A26040081

MIXED

Summary

The veteran, who served in the U.S. Army from January 2012 to June 2015, including service in Afghanistan from June 2013 to November 2013, appeals decisions denying increased ratings for obstructive sleep apnea (OSA) and irritable bowel syndrome (IBS), and contesting the effective date for his Total Disability based on Individual Unemployability (TDIU) award. The Board granted entitlement to TDIU effective September 1, 2020, finding that the veteran's combined service-connected disabilities, including bilateral hip conditions, lumbar spine strain, migraines, IBS, and hypothyroidism, rendered him unable to secure or follow substantially gainful employment. The Board also granted basic eligibility for Dependents' Educational Assistance (DEA) benefits effective September 1, 2020, as an ancillary benefit to the TDIU award. However, the Board denied increased ratings for OSA and IBS, as the veteran had already received the highest schedular ratings available for these conditions. The Board remanded claims for increased ratings and earlier effective dates for bilateral hip disabilities (right and left hip conditions under DCs 5252 and 5253), right hip scars (DC 7804), and migraines. These remands were necessary due to duty to assist errors, specifically insufficient VA examinations that failed to account for the ameliorative effects of medication, and the failure to associate relevant private physical therapy records with the claims file. The Board noted that while the veteran's attorney attempted to waive duty to assist, the Board is obligated to correct pre-decisional errors.

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

251205-612635

Full Decision Text

Citation Nr: A26040081
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 251205-612635
DATE: April 29, 2026

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU), effective September 1, 2020, but no earlier, is granted.

Entitlement to basic eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38 U.S.C., effective September 1, 2020, but no earlier, is granted.

Entitlement to an initial disability rating in excess of 50 percent for obstructive sleep apnea (OSA) is denied.

Entitlement to an initial disability rating in excess of 30 percent for irritable bowel syndrome (IBS) is denied.

REMANDED

Entitlement to a disability rating in excess of 20 percent for right hip labral tear and snapping hip syndrome, status post-surgical repair and bursitis (impairment of the thigh) (herein a right hip disability), under Diagnostic Code (DC) 5253, is remanded.

Entitlement to a compensable disability rating prior to August 24, 2023, for right hip labral tear and snapping hip syndrome, status post-surgical repair with bursitis (limitation of flexion) (herein a right hip disability), and in excess of 20 percent thereafter, under DC 5252, is remanded.

Entitlement to a disability rating in excess of 20 percent for left hip strain (impairment of the thigh) (herein a left hip disability), under DC 5253, is remanded.

Entitlement to an initial compensable disability rating prior to August 24, 2023, for left hip strain (limitation of flexion) (herein a left hip disability), and in excess of 20 percent thereafter, under DC 5252, is remanded.

Entitlement to an effective date prior to August 24, 2023, for the award of a separate disability rating, under DC 7804, for tender/painful right hip scars associated with a right hip disability (herein right hip scars), is remanded.

Entitlement to an initial disability rating in excess of 20 percent, under DC 7804, for right hips scars is remanded.

Entitlement to a disability rating in excess of 10 percent prior to August 24, 2023, for migraine headaches (herein migraines), and in excess of 50 percent thereafter, is remanded.

FINDINGS OF FACT

1. From September 1, 2020, but no earlier, the appellant was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.

2. The appellant is currently assigned a TDIU, effective September 1, 2020 (as granted herein), and basic eligibility to DEA has been granted as essentially an ancillary benefit of TDIU.

3. The appellant's OSA disability picture did not more nearly approximate chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy.

4. The appellant's IBS has been assigned the highest schedular rating available under DC 7319.

CONCLUSIONS OF LAW

1. From September 1, 2020, but no earlier, the criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16.

2. The criteria for entitlement to basic eligibility to DEA benefits from September 1, 2020, but no earlier, are met. 38 U.S.C. § 3501; 38 C.F.R. § 3.807.

3. The criteria for an initial disability rating in excess of 50 percent for the appellant's OSA are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, DC 6847.

4. The criteria for an initial disability rating in excess of 30 percent for the appellant's IBS are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, DC 7319.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant served on active duty in the United States Army from January 2012 to June 2015, to include service in Afghanistan from June 2013 to November 2013.

4. The criteria for an initial disability rating in excess of 30 percent for the appellant's IBS are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, DC 7319.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant served on active duty in the United States Army from January 2012 to June 2015, to include service in Afghanistan from June 2013 to November 2013.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2024 higher-level review of September 2023 and February 2024 rating decisions issued by the Department of Veterans Affairs' (VA) Veterans Benefits Administration, the agency of original jurisdiction (AOJ). VA timely received the appellant's December 2025 notice of disagreement (NOD), via VA Form 10182, with the December 2024 rating decision. The appellant selected the Board's Direct Docket.

Applicable Evidentiary Window

As the appellant has selected the Direct Review Docket, the Board may only consider the evidence of record before the AOJ at the time of its decision on the issues on appeal. See 38 C.F.R. §§ 20.300(a), 301. The Board will not consider evidence received after the AOJ decision unless the claimant files a timely request for a Board hearing or an opportunity to submit additional evidence on the NOD (VA Form 10182). 38 C.F.R. § 20.301. The appellant has not filed such a request.

The December 2024 rating decision on appeal was a higher-level review rating decision. See 38 U.S.C. § 5104B; 38 C.F.R. § 3.2601. The rating decision was issued in response to an August 2024 VA Form 20-0996 (Decision Review Request: Higher-Level Review). The August 2024 VA Form 20-0996 was filed in response to September 2023 and February 2024 rating decisions. As the December 2024 rating decision on appeal was a higher-level review rating decision, the evidentiary record in that decision (and thus the evidentiary record before the Board in this appeal) was limited to the evidence of record as of the September 2023 and February 2024 rating decisions that were being reviewed. See 38 U.S.C. § 5104B(d); 38 C.F.R. § 3.2601(f).

With respect to the issues being decided, if the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. See also Cook v. McDonough, 36 Vet. App. 175 (2023).

With respect to the issues being remanded, any evidence that may not be considered at this time will be considered by the AOJ in the readjudication of the remanded claim. See 38 C.F.R. § 3.103(c)(2)(ii).

Entitlement to a TDIU

The appellant's contention is understood to be that a TDIU is warranted based on the combined effects of his service-connected disabilities, effective September 1, 2020, when he stopped working.

Procedural History

A claim for a TDIU is part of an increased rating claim when such a claim is expressly raised by an appellant or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009).

In this case, issues on appeal include increased rating claims for bilateral hip disabilities. These claims have been continuously pursued since August 31, 2020, with the following relevant history:

- August 31, 2020, Intent to File (ITF) for compensation received. See VA Notification Letter, August 2020 (no record of the ITF itself is in the electronic claims file, but this letter informed the appellant of receipt of the ITF).

- April 2021 VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), with bilateral hip disabilities increased rating claims.

- May 2021 rating decision, addressing the bilateral hip disabilities increased rating claims.

- May 2022 VA Form 20-099
increased rating claims for bilateral hip disabilities. These claims have been continuously pursued since August 31, 2020, with the following relevant history:

- April 2021 VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), with bilateral hip disabilities increased rating claims.

- May 2021 rating decision, addressing the bilateral hip disabilities increased rating claims.

- May 2022 VA Form 20-0996 (Decision Review Request: Higher-Level Review), noting the issues as the ratings for bilateral hip disabilities and listing the May 2021 rating decision.

- June 2022 Higher-Level Review Rating Decision, identifying a duty to assist error in the bilateral hip disabilities increased rating claims.

- February 2023 Rating Decision (the rating decision itself is dated in January 2023 and the notification letter is dated in February 2023), addressing the bilateral hip disabilities increased rating claims.

- August 2023 VA Form 20-0995 (Decision Review Request: Supplemental Claim), noting the issues as the ratings for bilateral hip disabilities and listing the February 2023 rating decision.

- February 2024 Rating Decision (the rating decision itself is dated in January 2024 and the notification letter is dated in February 2024), addressing the bilateral hip disabilities increased rating claims.

- August 2024 VA Form 20-0996, noting the issues as the ratings for bilateral hip disabilities and listing the February 2024 rating decision.

- December 2024 Higher-Level Review Rating Decision, addressing the bilateral hip disabilities increased rating claims.

- December 2025 NOD, noting the issues as the ratings for bilateral hip disabilities and listing the December 2024 rating decision.

In review of the procedural history, it is found that bilateral hip disabilities increased rating claims (under multiple DCs) have been continuously pursued since the August 31, 2020, claim. See 38 U.S.C. § 5110(a)(2); 38 C.F.R. § 3.2500(c), (h) (all addressing continuous pursuit).

During this increased rating claim, the issue of TDIU has been reasonably raised. See, e.g., VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), August 2023.

The AOJ addressed the issue of TDIU in various rating decisions, to include in a February 2024 rating decision that granted entitlement to a TDIU, effective May 12, 2022. It was stated that "The effective date of this grant is May 12, 2022. Service connection has been established from the date entitlement arose." The rating decision stated that the appellant was "unable to secure or follow a substantially gainful occupation as a result of your service-connected [bilateral hip disabilities], adjustment disorder with mixed anxiety and depressed mood, lumbosacral strain."

The December 2024 rating decision on appeal denied "Entitlement to an earlier effective date for the grant of [TDIU]."

Even though the AOJ granted entitlement to a TDIU, this issue remains on appeal because the assigned effective date did not cover the entire review period. In this regard, in Phillips v. McDonough, 37 Vet. App. 394 (2024), the CAVC stated:

TDIU is not a separate claim, it is a rating option available whenever a claimant attempts to get service connection or a higher rating from VA and the record includes evidence of unemployability. Rice, 22 Vet. App at 453-54...

In the end, our chief point is that TDIU can be raised at various stages of the claims process and becomes vital when VA rates a disability. And, because TDIU can come up basically any time VA is rating a disability, VA may need to address it as part of separate claim streams when it is rating different disabilities. Put another way, TDIU is not its own separate benefit that VA can grant or deny unmoored from the underlying service-connection claim or rating. See Harper, 30 Vet. App. at 360; see also Rice, 22 Vet. App. at 454. Instead, TDIU is part of that underlying claim-as an option for a potential rating-and the eventual effective date depends on the specific claim VA is then adjudicating.

To review, the issue of TDIU is part of the bilateral hip disabilities increased rating claims on appeal and this issue will be considered
time VA is rating a disability, VA may need to address it as part of separate claim streams when it is rating different disabilities. Put another way, TDIU is not its own separate benefit that VA can grant or deny unmoored from the underlying service-connection claim or rating. See Harper, 30 Vet. App. at 360; see also Rice, 22 Vet. App. at 454. Instead, TDIU is part of that underlying claim-as an option for a potential rating-and the eventual effective date depends on the specific claim VA is then adjudicating.

To review, the issue of TDIU is part of the bilateral hip disabilities increased rating claims on appeal and this issue will be considered for the entire period dating to the August 31, 2020, increased rating claim (plus the one-year look-back period). See Harper v. Wilkie, 30 Vet. App. 356, 362 (2018) ("Mr. Harper's NOD placed the issue of the appropriate disability evaluation into appellate status and, therefore, because he was not awarded the highest rating possible, including TDIU, for the entire appeal period, the issue of entitlement to TDIU for the period prior to [when TDIU was granted] remained on appeal, and the Board had jurisdiction to consider that matter").

Legal Criteria

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a Veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a).

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

The economic component is met when the Veteran is unemployed or marginally employed. Marginal employment generally shall be deemed to exist when the Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment includes employment in a protected environment, such as a family business or sheltered workshop, which involves a lower-income position that, due to the Veteran's service-connected disabilities, is shielded in some respect from competition in the employment market. See LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024). Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a).

The non-economic component of the phrase "unable to secure and follow a substantially gainful occupation" includes consideration of the Veteran's history, education, skill, and training; whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the Veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). See Ray, 31 Vet. App. at 73.

The Board is not permitted to consider advancing age or a nonservice-connected disability when determining entitlement to a TDIU. See 38 C.F.R. §§ 3.341(a), 4.16, 4.19.

A TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this regard, entitlement to a TDIU is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a Veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019).

"When evaluating a veteran's claim for service-related disability benefits, the [VA] applies a
, 4 Vet. App. 361, 363 (1993). In this regard, entitlement to a TDIU is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a Veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019).

"When evaluating a veteran's claim for service-related disability benefits, the [VA] applies a unique standard of proof known as the 'benefit-of-the-doubt rule.'" See Bufkin v. Collins, 604 145 S. Ct. 728, 733 (2025).

In this regard, 38 U.S.C. § 5107(b) states that "[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, [VA] shall give the benefit of the doubt to the claimant" and 38 C.F.R. § 3.102 states that "[w]hen...a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim." See also Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) ("[I]f the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt").

Analysis

Upon review, and after resolving any reasonable doubt in the appellant's favor, entitlement to a TDIU, from September 1, 2020, but no earlier, is warranted.

As noted, the AOJ granted entitlement to a TDIU, effective May 12, 2022. It is noted that this date corresponds to the effective date of service connection for adjustment disorder. When considering whether entitlement to a TDIU is warranted prior to May 12, 2022, this analysis may not consider the impact of adjustment disorder, as it was not yet granted service connection.

The disabilities that the appellant was service-connected for prior to May 12, 2022, are as follows: bilateral hip disabilities (to include a right hip scar), a lumbar spine disability (specifically lumbosacral strain), migraines, IBS, and hypothyroidism.

The appellant provided various relevant information on an August 2023 VA Form VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). He reported all of his (as effective prior to May 12, 2022 and noted above) service-connected disabilities as preventing him from securing or following any substantial gainful occupation. Regarding his work history, he reported that he last worked full time and became too disabled to work in "Approx. 9/2020." He reported a job, working 40 hours per week, with the same employer as a "Service Agent" from June 2017 to "Approx. 9/2020." He reported leaving his last job because of his disability. He reported that he had tried to obtain employment since he became too disabled to work. As to education, he reported a high school degree and two years of college.

In the remarks section, he stated regarding his most recent job that this "was the only job I maintained after my discharge. Within 3 months I had used up all my FMLA and sick leave due to my service-connected disabilities, mainly my back and hip disabilities, which resulted in my termination. I do not remember how many hours of sick leave I was given originally." He also stated "I had tried to go to job fairs to obtain employment after I was laid off at [his last job]. Unfortunately, none of the employers could accommodate for my back and hip disabilities, since I was on crutches at the time, so I was never hired elsewhere."

Looking more specifically at each of the appellant's relevant service-connected disabilities, as to the appellant's bilateral hip disabilities, evidence demonstrated that such was manifested by various symptoms that would result in functional impairment.

VA treatment records documented bilateral hip symptomatology in 2020 and 2021. See VA Treatment Records, May 2020 (email from the appellant stating "I've been having a large amount of pain in my hip that radiates through the whole outside
"I had tried to go to job fairs to obtain employment after I was laid off at [his last job]. Unfortunately, none of the employers could accommodate for my back and hip disabilities, since I was on crutches at the time, so I was never hired elsewhere."

VA treatment records documented bilateral hip symptomatology in 2020 and 2021. See VA Treatment Records, May 2020 (email from the appellant stating "I've been having a large amount of pain in my hip that radiates through the whole outside hemisphere of my thigh, almost to the knee. It has caused my right leg to come close to collapsing under me, and is causing me not to be able to lift my leg from the floor. Even 10 degrees movement causes joint and muscular pain"); October 2020 (email from the appellant stating "I have also been having more and more issues with my left hip"); March 2021 (email from the appellant stating "my bilateral hip and leg pain has been getting worse. I'm basically using my cane constantly now, even at home, and I have been experiencing more and more muscle weakness, leading to me falling").

The appellant was afforded a VA examination in May 2021 and a Hip and Thigh Conditions Disability Benefits Questionnaire (DBQ) was completed by S.H., Nurse Practitioner (NP). As to the right hip, the DBQ stated "He still reports anterior and lateral hip pain with ambulation, decreased range of motion, and weakness." As to the left hip, the DBQ stated "He endorses the following symptoms: anterior head pain worse with weight-bearing physical activity." It was noted that the appellant regularly used a cane, specifically that "Cane use daily for ambulation for bilateral hip conditions."

The DBQ noted the appellant's report of flare-ups, stating "Flare-ups of the right hip occur 3-4 days times per week[.] The right hip flare-ups are severe[.] The right hip flare-ups last 1-2 hours[.] The right hip flare-ups are precipitated by weight bearing physical activity that involves flexion and abduction of hip" and "Flare-ups of the left hip occur 2-3 times per week[.] The left hip flare-ups are moderate to severe[.] The left hip flare-ups last up to 24 hours[.] The left hip flare-ups are precipitated by overuse involving weight bearing physical activity."

The DBQ noted the appellant's report of having functional loss or functional impairment, stating "Veteran reports that due to his bilateral hip conditions he 'can no longer walk without the use of the cane and cannot climb stairs or walk far without intense pain.' He is unable to perform his household tasks and reports falling frequently due to weakness."

The DBQ noted that the appellant's conditions would impact his ability to perform any type of occupational task, stating "The veterans bilateral hip condition would adversely affect the ability to perform occupational tasks requiring prolonged or rigorous weight bearing activities, lifting, carrying over distance, squatting, climbing, or, similar activities causing physical stress on the hip" and "There is no adverse effect on sedentary occupational activities with reasonable accommodations afforded for positional change."

Associated with the DBQ was a form completed by the appellant where he provided information regarding his bilateral hip disabilities. He stated that "Physical labor is almost impossible. If I do any sort of physical labor or driving, I am unable to perform any household tasks for at least 24 hours, if not more."

As to the appellant's lumbar spine disability, evidence also demonstrated that such was manifested by various symptoms that would result in functional impairment. The appellant was not afforded a VA examination with respect to his lumbar spine disability during the relevant review period prior to May 12, 2022. He was afforded a VA examination in October 2023, with a Back (Thoracolumbar Spine) Conditions DBQ completed by Dr. E.P. While this October 2023 DBQ is dated after the relevant period of prior to May 12, 2022, as it is the most contemporaneous DBQ addressing the appellant's lumbar spine disability, it will still be afforded probative value with respect to the functional impairment of the appellant's lumbar spine disability.

The DBQ stated "Any increased activity causes more back pain symptoms. The back is very tender to touch. Cannot carry over ten pounds. He cannot bend, twist, stooping without more pain. There is daily back pain" and "Approximately two years ago he started falling. He was prescribed two Canadian Crutches to prevent
ine) Conditions DBQ completed by Dr. E.P. While this October 2023 DBQ is dated after the relevant period of prior to May 12, 2022, as it is the most contemporaneous DBQ addressing the appellant's lumbar spine disability, it will still be afforded probative value with respect to the functional impairment of the appellant's lumbar spine disability.

The DBQ stated "Any increased activity causes more back pain symptoms. The back is very tender to touch. Cannot carry over ten pounds. He cannot bend, twist, stooping without more pain. There is daily back pain" and "Approximately two years ago he started falling. He was prescribed two Canadian Crutches to prevent falls. Falls caused by s/c back condition and he s/c bilateral hips. He cannot walk over 15 feet without the TWO Canadian Crutches -- or he will fall." The DBQ noted the constant use of crutches, stating "uses Canadian crutches for any ambulation."

The DBQ noted the appellant's report of flare-ups, stating "any increased activity causes more back pain -- must stop and rest - up to half day." The DBQ noted the appellant's report of having functional loss or functional impairment, stating "any increased activity causes more back pain -- must stop and rest." The DBQ noted additional factors contributing to disability of interference with sitting, interference with standing, disturbance of locomotion, less movement than normal, and weakened movement.

The examiner, Dr. E.P., also provided a separate opinion that, essentially, addressed the combined functional impact of the appellant's bilateral hip and lumbar spine disability. While this opinion is dated after the relevant review period of May 12, 2022, it is afforded probative value because it is the most contemporaneous opinion with respect to the appellant's lumbar spine disability. Dr. E.P. stated that "At least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected [lumbar spine and bilateral hip disabilities] would negatively impact his ability to function in an occupational environment" and provided a rationale stating:

Veteran cannot do many sedentary jobs due to chronic back and Hip and scars pain symptoms. He has weakness in the back and legs requiring use of Two Canadian Crutches for ambulation >15 Feet. Any prolonged standing or sitting causes more back and bilateral Hip pain symptoms. The disabilities above prevent engaging in sedentary activities and use of the hands due to back, Hip, & scars chronic pain symptoms. Multiple sedentary restrictions based on the disabilities listed above.

As to the appellant's migraines, a September 2020 VA treatment record stated "Migraine. Has been worsening some recently. The TRIPTAN still works. VET 'always' gets an aura and usually can stop episode with single dose and getting into dark room for a nap."

The appellant was afforded a VA examination May 2021 and a Headaches (Including Migraine Headaches) DBQ was completed by NP S.H. Headache pain was noted, specifically "Constant head pain," "Pain localized to one side of the head," and "Pain worsens with physical activity." Non-headache symptoms were noted of nausea, vomiting, sensitivity to light, sensitivity to sound, and sensory changes. Also noted was "headache aura" and "and irritability." The duration of typical head pain was noted as "Less than 1 day." The appellant was noted to have characteristic prostrating attacks of headache pain "Once in 2 months." He was not noted to have "very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability." The DBQ noted that the appellant's condition would impact his ability to work, stating "The veteran's migraine headache condition would adversely affect job attendance, attention and concentration during migraine events."

Associated with the DBQ was a form completed by the appellant where he provided information regarding his migraines. He stated that "If a headache hits me I am no longer functional, especially if it is not caught in time. For the majority of my headaches cannot get myself out of bed unless it is to be sick."

As to the appellant's IBS, various VA treatment records provided relevant information:

- August 2020, email from the appellant stating "I recently have been having more and more trouble with my GI issues (frequent, long bathroom trips, including ones that wake me up at night) and while the medication I was placed upon for nausea and cramping has helped, it has been bad enough to cause me to miss way more work than my FML covers. I was encouraged to request short term disability from my manager, and have started
that "If a headache hits me I am no longer functional, especially if it is not caught in time. For the majority of my headaches cannot get myself out of bed unless it is to be sick."

As to the appellant's IBS, various VA treatment records provided relevant information:

- August 2020, with a gastroenterologist (Dr. B.R.) stating "he is so sick that he cannot do his job. He cannot stay tied to the desk due abnormal stool habit-needs frequent bathroom breaks."

- August 2020, stating "He reviewed continued fears related to having to leave his current job due to [] ending of FML and no longer having any leave starting in September."

- September 2020, stating "Unfortunately, VET lost his job due to the frequent health-related absences."

- October 2020, stating "Veteran discussed recent developments in several areas, including being fired from his job due to running out of leave and medical leave."

- October 2020, with a gastroenterologist NP (R.J.) stating "veteran called for f/u & to di[s]cuss '2nd opinion' of recent eval[ua]tion of abdominal pain/ chronic worrisome diarrhea that caused veteran to be terminated from his teletech job due to too much time lost in sick leave and too much time spent in the restroom during his work day."

- December 2020, with a gastroenterologist (Dr. R.B.) stating "Over last couple of years his symptoms worsened with cramps, bloating, distention, borborygmi, urgency for stool and rare incontinence. He will have 4-6 stools on a good day and 12 more stools on a bad day with occasional nocturnal stooling every 1-2 weeks. He may spend up to 4 hours in the bathroom and due to this was fired from his job."

- April 2021, stating "Recently fired from his job which the veteran states was not going well and is currently not working. Veteran has a history of abdominal discomfort which has made working difficult."

- October 2021, with a gastroenterologist (Dr. R.B.) stating "stools 6-8 times per day, lost his job as telemarketer due to freq bathroom needs."

Also relevant is an April 2022 private mental health treatment record from Dr. D.A., which stated "Chronic gastro condition with discomfort and chronic diarrhea persists, helped to some degree by medications though these problems have le[]d to the inability to maintain employment and impacted social functioning."

Similarly, an August 2022 VA Mental Disorders DBQ stated "Veteran reports he is not currently working. He reports he worked as a phone center technician, most recently in September of 2020. 'I was having a lot of absen[c]es due to stomach issues. They said they couldn't handle the absen[c]es anymore.'"

In addition, the appellant was afforded a VA examination May 2021 and an Intestinal Conditions (Other than Surgical or Infectious) (Including Irritable Bowel Syndrome, Crohn's Disease, Ulcerative Colitis, and Diverticulitis) Disability Benefits Questionnaire (DBQ) was completed by NP S.H.

The DBQ stated "He reports the following symptoms: diarrhea[,] cramping[,] urgency[,] and nausea. He reports the condition affects his ability to live a normal life due to the frequency of the symptoms and bowel movement urgency." It was noted that the appellant had frequent episodes of bowel disturbances with abdominal distress. The DBQ noted that the appellant's condition would impact his ability to work, stating "The veteran's IBS would interfere with occupational activities due to bowel urgency and frequency, distraction from abdominal pain and distention."

Associated with the DBQ was a form completed by the appellant where he provided information regarding his IBS. He stated that "Due to the nature of this condition, I cannot be tied to a desk. This condition requires me to use the bathroom frequently and for long periods of time. While the medication helps a little, it is not enough for me to safely be away form a bathroom for any length of time."

In review, when evaluating the collective impact or combined effect of the appellant's service-connected disabilities, the
The DBQ noted that the appellant's condition would impact his ability to work, stating "The veteran's IBS would interfere with occupational activities due to bowel urgency and frequency, distraction from abdominal pain and distention."

In review, when evaluating the collective impact or combined effect of the appellant's service-connected disabilities, the evidence indicated that his disabilities would impact his ability to secure or follow, essentially, any type of substantially gainful occupation, to include sedentary employment. The term sedentary employment is being used here consistent with its commonly held meaning of a non-physical, light-duty, type job that requires limited physical exertion and extensive sitting.

The appellant's musculoskeletal disabilities (bilateral hip and lumbar spine disabilities) impact the appellant's exertional ability to perform the type of activities (e.g., lifting, bending, sitting, standing, walking, climbing) required by a physical or non-sedentary job. The appellant's musculoskeletal disabilities, IBS, and migraines, would all also impact the appellant's ability to perform the type of activities required of, essentially, any type of substantially gainful occupation, to include a sedentary job.

In this regard, evidence reflected pain, to include related to the musculoskeletal disabilities (bilateral hip and lumbar spine), migraines, and IBS. Evidence also reflected that the appellant's disabilities would likely interrupt his ability to perform work tasks, by way of musculoskeletal flare-ups necessitating rest (the October 2023 Back DBQ stated regarding flare-ups that "any increased activity causes more back pain -- must stop and rest"), migraine attacks that require sleeping (in a May 2021 statement accompanying the Headaches DBQ the appellant stated "If a headache hits me am no longer functional...For the majority of my headaches cannot get myself out of bed"), and IBS symptomatology that necessitate frequent and long bathroom trips (a December 2020 VA treatment record stated "He will have 4-6 stools on a good day and 12 more stools on a bad day with occasional nocturnal stooling every 1-2 weeks. He may spend up to 4 hours in the bathroom" and in a May 2021 statement accompanying the Intestinal DBQ the appellant stated "This condition requires me to use the bathroom frequently and for long periods of time").

The frequency and duration of breaks, and overall time spent off work related tasks, would likely limit his occupational effectiveness and efficiency and seem to be more frequent than would be tolerated by any type of employer. In addition, the pain and time spent off work related tasks (due to musculoskeletal flare-ups, migraine attacks, and IBS symptomatology) would likely impact his ability to perform work related tasks for the duration of a typical workday or shift; his ability to focus and concentrate for sustained periods; and his overall reliability and productivity, which all are likely to be necessary in any employment setting.

Overall, the evidence is found to be at least in approximate balance as to whether, from September 1, 2020, the appellant was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The appellant is accordingly given the benefit of the doubt and entitlement to a TDIU, from September 1, 2020, is warranted.

With respect to the effective date of September 1, 2020, as noted, the appellant reported on the August 2023 VA Form 21-8940 that he last worked full time and became too disabled to work in "Approx. 9/2020." The appellant did not provide a specific date as to when he last worked full time in September 2020. The appellant's attorney, at times, generally referenced September 2020 when referencing an effective date for TDIU. See Attorney Statements, August 2024 ("VA should grant entitlement to TDIU from September 2020 the date the Veteran last worked"); December 2025 ("The Board should also grant an earlier effective date for TDIU and DEA, from no later than September 2020").

At other times, however, the attorney advocated for an effective date of September 1, 2020. See Attorney Statements, August 2023 ("VA must grant the Veteran entitlement to TDIU from September 1, 2020, the date he last worked"); December 2025 ("the Board must
The appellant's attorney, at times, generally referenced September 2020 when referencing an effective date for TDIU. See Attorney Statements, August 2024 ("VA should grant entitlement to TDIU from September 2020 the date the Veteran last worked"); December 2025 ("The Board should also grant an earlier effective date for TDIU and DEA, from no later than September 2020").

Even though there is a lack of definitive clarity as to the date that the appellant last worked in September 2020, based on the attorney contentions and resolving any reasonable doubt in the appellant's favor, the date of September 1, 2020, will be accepted as the date of when a TDIU is warranted. It is acknowledged that there is uncertainty with the selected date, but even if a later date in September 2020 were to be used for the grant of entitlement to a TDIU (due, hypothetically, to the appellant having worked some amount of days in September), this would not result a different amount of compensation due to the appellant, as the first day of payment of VA monetary benefits is generally the first day of the calendar month following the month in which an award becomes effective. See 38 U.S.C. § 5111(a)(1); 38 C.F.R. § 3.31.

As to whether a TDIU is warranted prior to September 1, 2020, the appellant's contentions are understood to be that a TDIU effective September 1, 2020, as granted herein, is the benefit sought on appeal.

It is acknowledged that the appellant's attorney stated in August 2023 that "he is entitled to TDIU from at least August 2020 as his underlying increased rating appeals have been continuously pursued since that date." This appears to have been an inadvertent inconsistency in the attorney's contentions, as they did not seemingly advocate for an August 2020 effective date in that same statement, or in the subsequent August 2024 and December 2025 statements. In this regard, in the August 2023 statement, the attorney stated that "the evidence shows that the Veteran last performed substantially gainful employment in September 2020" and "In sum, VA must grant the Veteran entitlement to TDIU from September 1, 2020, the date he last worked." As such, it does not appear that the appellant truly was presenting the contention that a TDIU is warranted from August 2020. Given the internal inconsistency in the August 2023 statement and the subsequent August 2024 and December 2025 statements, the benefit sought on appeal is understood to be entitlement to a TDIU, effective September 1, 2020. This benefit is being granted in this decision.

Moreover, the appellant and his attorney's statements are understood as reporting that September 2020 was when the appellant stopped working in a substantially gainful occupation, or stated differently, that prior to this time he was able to follow a substantially gainful occupation. See Attorney Statements, August 2023 ("the evidence shows that the Veteran last performed substantially gainful employment in September 2020"); August 2024 (same); December 2025 ("He last performed substantially gainful employment in September 2020"); VA Form 21-8940, August 2023 (with the appellant reporting that he last worked full time and became too disabled to work in "Approx. 9/2020").

Further, on the August 2023 VA Form 21-8940, the appellant reported working from 2017 to "Approx. 9/2020" for 40 hours per week. He also reported earning amounts from 2019 and the highest gross earnings per month that represent income that exceeds the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Based on the information provided, this form is understood as a report from the appellant of his work from 2017 to "Approx. 9/2020" being substantially gainful.

Overall, to the extent that it has been reasonably raised, entitlement to a TDIU is not warranted before September 1, 2020, as the most probative evidence, which was provided from the appellant and his attorney and discussed above,
. 9/2020" for 40 hours per week. He also reported earning amounts from 2019 and the highest gross earnings per month that represent income that exceeds the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Based on the information provided, this form is understood as a report from the appellant of his work from 2017 to "Approx. 9/2020" being substantially gainful.

Overall, to the extent that it has been reasonably raised, entitlement to a TDIU is not warranted before September 1, 2020, as the most probative evidence, which was provided from the appellant and his attorney and discussed above, indicated that the appellant had secured and followed substantially gainful employment prior to that time.

In sum, from September 1, 2020, but no earlier, the appellant was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. As such, from September 1, 2020, but no earlier, the criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. To this extent, the appeal is granted.

Entitlement to Basic Eligibility to DEA Benefits

Upon review, basic eligibility to DEA benefits from September 1, 2020, but no earlier, is warranted.

The appellant's attorney contended that basic eligibility to DEA is warranted from September 1, 2020. See Attorney Statement, December 2025 ("The Board should also grant an earlier effective date for TDIU and DEA, from no later than September 2020"). The benefit sought with respect to this issue is being fully granted in this decision for the reasons outlined below.

38 C.F.R. § 3.807(a) states that basic eligibility to DEA benefits exists if a veteran, as relevant, "[h]as a permanent total service-connected disability." See also 38 U.S.C. § 3501 (referencing related to eligibility "a total disability permanent in nature resulting from a service-connected disability").

In a May 2023 rating decision that granted service connection for OSA, the AOJ also granted basic eligibility to DEA benefits, effective August 10, 2022. The rating decision stated "Basic eligibility for [DEA] is granted as the evidence shows you currently have a totally disabling service-connected disability or disabilities, permanent in nature" and "Basic eligibility to [DEA] is established from August 10, 2022, the date criteria met." The effective date corresponded to the effective date of OSA and the rating assigned for this disability, which resulted in the appellant's combined disability rating being 100 percent.

In a January 2024 rating decision that granted entitlement to a TDIU, the AOJ also granted "Entitlement to an earlier effective date for the grant of eligibility for [DEA], with a new effective date of May 12, 2022." The effective date corresponded to the effective date of TDIU. The rating decision stated "Basic eligibility for [DEA] is granted as the evidence shows you currently have a totally disabling service-connected disability or disabilities, permanent in nature." It was further stated that "Evidence we have used to grant permanent and total disability status: Grant of [TDIU] from May 12, 2022."

In review of the January 2024 rating decision, the effective date for DEA benefits was assigned based on the effective date for entitlement to a TDIU and was essentially established as an ancillary benefit related to the appellant's award of a TDIU. As outlined above, this decision has granted TDIU effective earlier, specifically as of September 1, 2020.

Based on the current effective date of TDIU and the procedural history of the case where DEA was treated as an ancillary benefit of TDIU, the criteria for entitlement to basic eligibility to DEA benefits from September 1, 2020, but no earlier, are met. 38 U.S.C. § 3501; 38 C.F.R. § 3.807. To this extent, the appeal is granted.

Initial Disability Rating for OSA

The appellant and his attorney did not submit any specific argument clearly articulating why a higher rating is warranted or advocate for any specific higher rating. In this regard, while the appellant's attorney submitted detailed contentions with respect to other claims, the attorney did not submit a developed argument regarding this claim. See Attorney Statements, August 2023, August 2024, December 2025.

Procedural History

In a May 2023 rating decision, service connection was granted for OSA and
but no earlier, are met. 38 U.S.C. § 3501; 38 C.F.R. § 3.807. To this extent, the appeal is granted.

Initial Disability Rating for OSA

Procedural History

In a May 2023 rating decision, service connection was granted for OSA and a 50 percent disability rating was assigned, effective August 10, 2022. The rating was assigned under DC 6847. The AOJ stated that this rating was assigned based on "Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine" and also that "Additional symptom(s) include...Persistent day-time hypersomnolence."

The appellant continuously pursued the initial rating assigned in the May 2023 rating decision for OSA to the Board. See VA Form 20-0995, August 2023 (noting, as relevant, the issue as the rating for OSA and listing the May 2023 rating decision); Rating Decision, September 2023 (continuing the previously assigned 50 percent disability rating for OSA from August 10, 2022); VA Form 20-0996, August 2024 (noting, as relevant, the issue as the rating for OSA and listing the September 2023 rating decision); Higher-Level Review Rating Decision, December 2024 (continuing the previously assigned 50 percent disability rating for OSA); NOD, December 2025 (noting, as relevant, the issue as the rating for OSA and listing the December 2024 rating decision).

Legal Criteria Generally for Initial/Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).

38 C.F.R. § 4.3 states "[w]hen after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant."

38 C.F.R. § 4.7 states "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned."

38 C.F.R. § 4.21 states "it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified."

Legal Criteria Specific to OSA

As noted, the appellant's OSA has been rated under DC 6847. See 38 C.F.R. § 4.97.

Under DC 6847 ("Sleep Apnea Syndromes (Obstructive, Central, Mixed)"), a noncompensable (0 percent) disability percent rating is warranted for "Asymptomatic but with documented sleep disorder breathing."

A 30
disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned."

38 C.F.R. § 4.21 states "it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified."

Legal Criteria Specific to OSA

As noted, the appellant's OSA has been rated under DC 6847. See 38 C.F.R. § 4.97.

A 30 percent rating is warranted for "Persistent day-time hypersomnolence."

A 50 percent rating is warranted for "Requires use of breathing assistance device such as [CPAP] machine."

A 100 percent rating is warranted for "Chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy."

Analysis

Upon review, entitlement to an initial disability rating in excess of 50 percent for OSA is not warranted.

As noted, the appellant was assigned a 50 percent disability rating under DC 6847. The next higher 100 percent disability rating is warranted for "Chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy." The evidence did not show that the appellant's OSA met or more nearly approximated this criteria. Moreover, the appellant and his attorney did not contend that his OSA met or more nearly approximated this criteria.

Turning to the evidence of record, the appellant was afforded one VA examination prior to the rating decision on appeal, in May 2021, and VA obtained an additional records review report in April 2023. Sleep Apnea DBQs were completed by NP S.H. (the May 2021 DBQ) and Dr. E.P. (the April 2023 DBQ).

The May 2021 DBQ was completed prior to the effective date of service connection (August 10, 2022) and included under "Section III - Findings, Signs and Symptoms" a question of "does the veteran currently have any findings, signs or symptoms attributable to sleep apnea?" Unmarked were checkboxes for the higher 100 percent disability rating criteria under DC 6487 (specifically, boxes for Chronic respiratory failure; carbon dioxide retention; cor pulmonale; and requires tracheostomy). The April 2023 DBQ also included a section "3. Findings, signs and symptoms" and a question of "Does the Veteran currently have any findings, signs or symptoms attributable to sleep apnea?" The only response was persistent daytime hypersomnolence, with the boxes for the higher 100 percent disability rating criteria under DC 6487 presumably not shown because they were unmarked by the examiner.

The April 2023 DBQ is found to be the most probative evidence of record regarding the severity of the appellant's OSA during the review period, as such was completed following a records review by a medical professional and contained specific findings relevant to the applicable rating criteria. This DBQ did not show that the appellant's OSA was manifested by the next higher 100 percent disability rating criteria under DC 6847. Other evidence of record did not otherwise show the criteria for the next higher rating were met or more nearly approximated, and the appellant and his attorney have not contended otherwise.

The appellant's symptoms, to include his lay reports of such, are specifically acknowledged. See Sleep Apnea DBQs, May 2021 and April 2023 (noting peristent daytime hypersomnolence, and that the appellant requires the use of use of a CPAP machine). Even when considering the appellant's symptoms, a higher rating is not warranted under DC 6847 because the criteria for the next higher rating were not met or more nearly approximated.

Overall, the evidence persuasively weighs against the claim for a higher rating and thus the evidence is not in approximate balance, which means that the benefit of the doubt rule is not for application for the claim on appeal. See Lynch v. McDonough, 21 F.4th 776, 781-782 (Fed. Cir. 2021) ("evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other").

The appellant's OSA disability picture did not more nearly approximate chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. As such, the criteria for an initial disability rating in excess
rating and thus the evidence is not in approximate balance, which means that the benefit of the doubt rule is not for application for the claim on appeal. See Lynch v. McDonough, 21 F.4th 776, 781-782 (Fed. Cir. 2021) ("evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other").

The appellant's OSA disability picture did not more nearly approximate chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. As such, the criteria for an initial disability rating in excess of 50 percent for the appellant's OSA are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, DC 6847. To this extent, the appellant's appeal is denied.

Initial Disability Rating for IBS

Procedural History

In a May 2021 rating decision, service connection was granted for IBS and a 30 percent disability rating was assigned, effective August 31, 2020. The rating was assigned under DC 7319. The AOJ stated that this rating was assigned based on abdominal distress and diarrhea and also an additional symptom of frequent bowel disturbance. The December 2024 rating decision on appeal additionally noted a symptom of "Severe symptoms."

The appellant continuously pursued the initial rating assigned in the May 2021 rating decision for IBS to the Board. See VA Form 20-0996, May 2022 (noting, as relevant, the issue as the rating for IBS and listing the May 2021 rating decision); Higher-Level Review Rating Decision, June 2022 (identifying a duty to assist error in the IBS increased rating claim); Rating Decision, February 2023 (continuing the previously assigned 30 percent disability rating for IBS from August 31, 2020; the rating decision itself is dated in January 2023 and the notification letter is dated in February 2023); VA Form 20-0995, August 2023 (noting, as relevant, the issue as the rating for IBS and listing the February 2023 rating decision); Rating Decision, February 2024 (continuing the previously assigned 30 percent disability rating for IBS; the rating decision itself is dated in January 2024 and the notification letter is dated in February 2024); VA Form 20-0996, August 2024 (noting, as relevant, the issue as the rating for IBS and listing the February 2024 rating decision); Higher-Level Review Rating Decision, December 2024 (continuing the previously assigned 30 percent disability rating for IBS); NOD, December 2025 (noting, as relevant, the issue as the rating for IBS and listing the December 2024 rating decision).

Legal Criteria Specific to IBS

As noted, the appellant's IBS has been rated under DC 7319. See 38 C.F.R. § 4.114.

Effective May 19, 2024, VA amended the schedule for rating disabilities of the digestive system. See Schedule for Rating Disabilities: The Digestive System, 89 Fed. Reg. 19735 (Mar. 20, 2024). These amendments included changes to DC 7319. Claims pending prior to the effective date will be considered under both the "old" and "new" rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Applied to this case, that means the "old" DC 7319 can be applied for the entire appeal period, while the "new" DC 7319 can only be applied from May 19, 2024, forward.

As noted, the appellant's IBS has been rated under DC
a current regulation prior to its effective date unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Applied to this case, that means the "old" DC 7319 can be applied for the entire appeal period, while the "new" DC 7319 can only be applied from May 19, 2024, forward.

As noted, the appellant's IBS has been rated under DC 7319. See 38 C.F.R. § 4.114.

Under the "old" DC 7319 ("Irritable colon syndrome (spastic colitis, mucous colitis, etc.)"), a noncompensable (0 percent) disability rating is warranted for "Mild; disturbances of bowel function with occasional episodes of abdominal distress."

A 10 percent rating is warranted for "Moderate; frequent episodes of bowel disturbance with abdominal distress."

A 30 percent rating, the highest schedular rating available, is warranted for "Severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress."

Under the "new" DC 7319 ("Irritable bowel syndrome (IBS)"), a 10 percent rating is warranted for "Abdominal pain related to defecation at least once during the previous three months; and two or more of the following: (1) change in stool frequency, (2) change in stool form, (3) altered stool passage (straining and/or urgency), (4) mucorrhea, (5) abdominal bloating, or (6) subjective distension."

A 20 percent rating is warranted for "Abdominal pain related to defecation for at least three days per month during the previous three months; and two or more of the following: (1) change in stool frequency, (2) change in stool form, (3) altered stool passage (straining and/or urgency), (4) mucorrhea, (5) abdominal bloating, or (6) subjective distension."

A 30 percent rating, the highest schedular rating available, is warranted for "Abdominal pain related to defecation at least one day per week during the previous three months; and two or more of the following: (1) change in stool frequency, (2) change in stool form, (3) altered stool passage (straining and/or urgency), (4) mucorrhea, (5) abdominal bloating, or (6) subjective distension."

Analysis

Upon review, entitlement to an initial disability rating in excess of 30 percent for IBS is not warranted.

As noted, the appellant was assigned a 30 percent disability rating under DC 7319. Under both the "old" and the "new" DC 7319, 30 percent is the highest schedular disability rating available. As the appellant has been assigned the highest schedular disability rating available under DC 7319, there is no basis to award a higher rating under this DC and thus a higher rating is not warranted.

The appellant's symptoms, to include his lay reports of such, are specifically acknowledged. See Intestinal Conditions DBQs, May 2021, September 2023. As noted, the AOJ assigned a rating based on severe symptoms, to include abdominal distress, diarrhea, and frequent bowel disturbance. The appellant's symptoms, and their resulting functional impact, were discussed further in the TDIU section above. Even when considering the appellant's symptoms, a higher rating is not warranted under DC 7319 because the appellant has already been granted the highest schedular rating available.

It is acknowledged that the appellant took medication to treat his IBS. See Intestinal Conditions DBQs, May 2021, September 2023. In Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the United States Court of Appeals for Veterans Claims (CAVC) stated that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." See also Ingram v. Collins, 38 Vet. App. 130, 135 (2025) ("The [CAVC] in Jones concluded that when relevant rating criteria do not explicitly contemplate a veteran using medication to allay symptoms of a service-connected disability, the Board, in assessing the severity of that disability for rating purposes, must discount the beneficial effects of medication used").

The rating criteria under DC 7319,
ki, 26 Vet. App. 56, 63 (2012), the United States Court of Appeals for Veterans Claims (CAVC) stated that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." See also Ingram v. Collins, 38 Vet. App. 130, 135 (2025) ("The [CAVC] in Jones concluded that when relevant rating criteria do not explicitly contemplate a veteran using medication to allay symptoms of a service-connected disability, the Board, in assessing the severity of that disability for rating purposes, must discount the beneficial effects of medication used").

The rating criteria under DC 7319, both the "old" and the "new," do not specifically contemplate medication. Assuming (without deciding) that ameliorative or beneficial effects did occur from the appellant's IBS medication, this would presumably result in some level of decrease in symptoms and a less severe disability picture. As explained above, however, the appellant is already assigned the highest schedular rating available under DC 7319, such that a higher rating is not possible even if the Board were to discount the (assumed) beneficial medication effects in this case.

In sum, the appellant's IBS has been assigned the highest schedular rating available under DC 7319. As such, the criteria for an initial disability rating in excess of 30 percent for the appellant's IBS are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, DC 7319. To this extent, the appellant's appeal is denied.

REASONS FOR REMAND

Appeals Modernization Act (AMA) Remands

Under the AMA, VA's duty to assist ends when VA issues the notice of decision on a claim or returned claim and does not recommence unless a supplemental claim is submitted, or a claim is returned to the AOJ for correction of an error. 38 U.S.C. § 5103A(e); 38 C.F.R. § 3.159(c).

Given the limitations of when the duty to assist applies, remand by the Board in the AMA is proper for correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors); and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a).

While additional delay is regrettable, remand is necessary in order to correct the pre-decisional duty to assist errors discussed below.

Attempted Waiver of Duty to Assist

It is here acknowledged that, essentially, the appellant's attorney attempted to waive the appellant's right to any further assistance from, including as due to any errors, VA. See Attorney Statement, December 2025 (accompanying the relevant NOD). His contention is that Janssen v. Principi, 15 Vet. App. 370 (2001) holds that an appellant represented by counsel can waive consideration of VA's duty to assist.

The Board has reviewed Janssen but notes that the CAVC did not purport to address whether an appellant, represented by counsel, can waive any VA assistance duties when the case is before VA; Janssen only addressed whether an appellant could forgo consideration of any duty to assist errors before the CAVC. In fact, the CAVC in Janssen distinguished cases that suggested such a waiver may not be proper at the VA level. Moreover, "it does not necessarily follow that a claimant's voluntary relinquishment of a right categorically forbids VA's performance of a related but separately imposed duty." Clark v. McDonough, 35 Vet. App. 317, 325, n.2 (2022). The Board finds no support for extending Janssen beyond its actual holding, as there are clear differences in the duties and obligations of the Board and the CAVC in the conduct of their review.

Accordingly, waiver of such would represent a complete rejection on the part of VA of Congress's mandates to identify and correct any pre-decisional duty to assist errors. As such, while the attorney's statement and contention are acknowledged, remand is still
"it does not necessarily follow that a claimant's voluntary relinquishment of a right categorically forbids VA's performance of a related but separately imposed duty." Clark v. McDonough, 35 Vet. App. 317, 325, n.2 (2022). The Board finds no support for extending Janssen beyond its actual holding, as there are clear differences in the duties and obligations of the Board and the CAVC in the conduct of their review.

Initial/Increased Disability Ratings for Right and Left Hip Disabilities (under DCs 5252 and 5253)

Prior to the rating decision on appeal, two duty to assist errors occurred. First, while the appellant was afforded VA examinations, such were not entirely sufficient to decide these claims. Second, the AOJ did not attempt to obtain outstanding records when such was warranted. Remand is therefore required to correct these errors. See 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a).

With respect to the first error, the appellant was afforded VA examinations in May 2021 and October 2023 and Hip DBQs were completed by NP S.H. (the May 2021 DBQ) and Dr. E.P. (the October 2023 DBQ). Upon review, these DBQs were not entirely sufficient.

In this regard, the DBQ did not contain appropriate information pursuant to Jones v. Shinseki, 26 Vet. App. 56 (2012) and Ingram v. Collins 38 Vet. App. 130 (2025). While the May 2021 DBQ noted that the appellant took medication ("He uses the following medications/therapies for his bilateral hip pain: lidocaine and OTC analgesics") and so did VA treatment records (a May 2023 record quoted further below in the remand directives noted Voltaren gel), neither DBQ provided information to allow compliance with Jones and Ingram, which are for application because the DCs at issue (DC 5252 and 5253) do not reference medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) ("[T]he Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria"); Ingram v. Collins 38 Vet. App. 130, 132 (2025) (specifically addressing disability ratings for musculoskeletal conditions and stating that "because the applicable [DCs]...do not reference medication, the Board must discount beneficial medication effects when assigning an evaluation").

In sum, a pre-decisional duty to assist error was committed by not obtaining an entirely sufficient VA examination. See 38 C.F.R. § 4.2 ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes"); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("Once [VA] undertakes the effort to provide an examination...[VA] must provide an adequate one"). Accordingly, remand is warranted to afford the appellant a new examination, to include obtaining an opinion that addresses the impact of the appellant's disability without the ameliorating/beneficial effects of any medication, as outlined further in the remand directives below.

With respect to the second error, VA's duty to assist includes obtaining sufficiently identified VA treatment records, to include records of treatment at non-VA facilities authorized by VA or at VA expense (e.g., private medical records). See 38 U.S.C. § 5103A(c) ("In the case of a claim for disability compensation, the assistance provided by the Secretary under this section shall include obtaining the following records if relevant to the claim...Records of relevant medical treatment or examination of the claimant...at the expense of the Department"); 38 C.F.R. § 3.159(c)(3) ("Obtaining records in compensation claims. In a claim for disability compensation, VA will make efforts to obtain...records of examination or treatment at non-VA facilities authorized by VA").

VA treatment records referenced the appellant as receiving private medical care authorized by VA:

- VA Treatment Record, October 2021 ("Your VA provider has referred you for VA Community Care in the community. Your referral for
(c) ("In the case of a claim for disability compensation, the assistance provided by the Secretary under this section shall include obtaining the following records if relevant to the claim...Records of relevant medical treatment or examination of the claimant...at the expense of the Department"); 38 C.F.R. § 3.159(c)(3) ("Obtaining records in compensation claims. In a claim for disability compensation, VA will make efforts to obtain...records of examination or treatment at non-VA facilities authorized by VA").

VA treatment records referenced the appellant as receiving private medical care authorized by VA:

- VA Treatment Record, October 2021 ("Your VA provider has referred you for VA Community Care in the community. Your referral for medical care has been approved with the Non-VA provider listed below," with H.T.T. Physical Therapy (PT) listed).

- VA Treatment Record, January 2022 ("VistA Imaging - Scanned Document PHYSICAL THERAPY [H.T.T.] PT DOS:1/12/22").

- VA Treatment Record, February 2022 ("Your VA provider has referred you for VA Community Care in the community. Your referral for medical care has been approved with the Non-VA provider listed below," with H.T.T. PT listed).

- VA Treatment Record, May 2022 ("VistA Imaging - Scanned Document [H.T.T.] PT 05/24/2022).

- VA Treatment Record, December 2022 (including an assessment of "HIP pain, starts up the PT [H.T.T.] again mid JAN," with the language of starting PT "again" indicating that the prior 2022 PT records may relate to the hip).

- VA Treatment Record, January 2023 ("VistA Imaging - Scanned Document PHYSICAL THERAPY [H.T.T.] PHYSICAL THERAPY_1/4/23").

Review of these records indicated that the appellant received private medical care, authorized by VA, from a physical therapist related to his hip pain and that records from such care were received by VA and scanned into a VA system for identified dates of at least January 2022, May 2022, and January 2023. While VA received such records and scanned them into a VA system, they were not obtained for purposes of the claims on appeal prior to the rating decision on appeal (i.e., they were not associated with the electronic claims file).

An alternative pre-decisional duty to assist error could be that the AOJ did not notify the appellant of the outstanding records from H.T.T. PT and request that the appellant provide a release for the records. See 38 C.F.R. § 3.159(e)(2) ("If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records"). In this case, however, VA may have already received all of the relevant records from the private provider at issue (as noted, records from this provider were scanned into a VA system but not associated with the electronic claims file) such that this provision may not be applicable. As such, it is premature, at this time, to identify this as a pre-decisional duty to assist error. This is noted so that, after the AOJ associates with the electronic claims file the private records from H.T.T. PT that VA already has received, the AOJ and the appellant may be aware of this potential issue.

In sum, the AOJ committed a pre-decisional duty to assist error by not obtaining (i.e., associating with the electronic claims file) the discussed sufficiently identified private medical records. Remand is therefore warranted for the AOJ to attempt to obtain these private medical records.

Earlier Effective Date and Initial Disability Rating for Right Hip Scars under DC 7804

Remand is warranted for these claims because they are inextricably intertwined at this time with the right hip disability increased rating claims being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991).

As explained above, there were pre-decisional duty to assist errors regarding the right hip disability increased rating claim that requires them to be remanded. One of the error related to the sufficiency of VA examinations related to the right hip disability and these claims are intertwined with the development of evidence associated with the right hip disability, as well as with the analysis required to assign appropriate ratings for the relevant disabilities. In this regard, VA's Hip Conditions DBQ contains information relating to scars. Further, with respect to scars, the appellant has been assigned a rating under DC 7804 (as well as DC 7802, which is not on appeal at this time) and DC 7805 states that "Evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate [DC]." Overall, these claims are found to be intertwined at this time with the right hip disability claims being remanded and it is appropriate for them to be addressed together with the adjudication of the right hip disability claims.

As such, the identified pre-decisional duty to assist errors as to the right hip disability increased rating claim extend to these intertwined claims and, accordingly, remand is also warranted for these claims.

Increased Disability Rating for Migraines

Prior to the rating decision on appeal, a duty to assist error occurred. Specifically, while the appellant was afforded VA examinations, such were not entirely sufficient to decide this claim. Remand is therefore required to correct this error. See 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a).

The appellant was afforded one VA examination prior to the rating decision on appeal, in May 2021, and VA obtained an additional records review report in September 2023. Headaches DBQs were completed by NP S.H. (the May 2021 DBQ) and Dr. E.P. (the September 2023 DBQ). Upon review, these DBQs were not entirely sufficient.

In this regard, the DBQs did not contain appropriate information pursuant to Jones v. Shinseki, 26 Vet. App. 56 (2012). While the DBQs noted that the appellant took medication (the May 2021 DBQ noted Sumatriptan, Ibuprofen and Ondansetron; the September 2023 DBQ noted Sumatriptan), information was not provided to allow compliance with Jones, which is for application because the DC at issue (DC 8100) does not reference medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012); see also Ingram v. Collins, 38 Vet. App. 130, 135 (2025).

In sum, a pre-decisional duty to assist error was committed by not obtaining an entirely sufficient VA examination. See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, remand is warranted to afford the appellant a new examination, to include obtaining an opinion that addresses the impact of the appellant's disability without the ameliorating/beneficial effects of any medication, as outlined further in the remand directives below.

The matters are REMANDED for the following action:

1. Obtain (i.e., associate with the electronic claims file) the non-VA records identified as being scanned into a VA system. Such includes records from January 2022, May 2022, and January 2023, as noted in the following VA treatment records:

(a.) VA Treatment Record, January 2022 ("VistA Imaging - Scanned Document PHYSICAL THERAPY [H.T.T.] PT DOS:1/12/22").

(b.) VA Treatment Record, May 2022 ("VistA Imaging - Scanned Document [H.T.T.] PT 05/24/2022).

(c.) VA Treatment Record, January 2023 ("VistA Imaging - Scanned Document PHYSICAL THERAPY [H.T.T.] PHYSICAL THERAPY_1/4/23").

2. Afford the appellant appropriate examinations to determine the severity of his (1) bilateral hip disabilities and (2) migraines.

The clinician must provide an opinion addressing the following:

What is the appellant's disability picture without the ameliorating/beneficial effects of any medication?

If possible, please portray the appellant's disability picture without the ameliorating/beneficial effects of any medication in terms of:

(a.) For the bilateral hip disabilities, range of motion measurements. See 38 C.F.R. § 4
Treatment Record, January 2023 ("VistA Imaging - Scanned Document PHYSICAL THERAPY [H.T.T.] PHYSICAL THERAPY_1/4/23").

2. Afford the appellant appropriate examinations to determine the severity of his (1) bilateral hip disabilities and (2) migraines.

The clinician must provide an opinion addressing the following:

What is the appellant's disability picture without the ameliorating/beneficial effects of any medication?

If possible, please portray the appellant's disability picture without the ameliorating/beneficial effects of any medication in terms of:

(a.) For the bilateral hip disabilities, range of motion measurements. See 38 C.F.R. § 4.71a, DCs 5252 (addressing limitation of flexion) and 5253 (addressing limitation of abduction, adduction, and rotation).

(b.) For migraines, whether there are characteristic or completely prostrating attacks, the frequency of attacks, the duration of attacks, and whether the attacks are productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, DC 8100.

The clinician's attention is invited to the following evidence indicating that the appellant took medication for these disabilities:

(a.) For the hips:

i. VA Hip and Thigh Conditions Disability Benefits Questionnaires (DBQ), May 2021 ("He uses the following medications/therapies for his bilateral hip pain: lidocaine and OTC analgesics").

ii. VA Treatment Record, May 2023 ("The Veteran has chronic pain. Pain is primarily located: back and legs, mostly outside hip" and "Current pharmacological treatments for pain: Voltaren gel").

(b.) VA Headaches, DBQs, May 2021 and September 2023 (noting Sumatriptan, Ibuprofen and Ondansetron).

3. For all opinions provided, the clinician must include the underlying reasons for any conclusions reached.

4. The Board does not make any credibility determinations at this time with respect to the appellant's lay statements.

5. Thereafter, readjudicate the claims.

K.A. KENNERLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. Hoopengardner, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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